Another View -- Nancy Libin: A new opportunity to protect broadband privacy

By NANCY LIBINMay 17. 2017 9:43PMLawmakers are facing tough questions about online privacy. States such as New Hampshire are considering local privacy regulation for the internet.

But while everyone supports strong protection for our privacy online — as a former DOJ chief privacy officer in the Obama administration, I certainly do — there is far less consensus on how best to achieve this goal. To borrow a phrase, who knew internet privacy could be so complicated?

For example, the FCC privacy rules Congress recently withdrew were clearly flawed. They departed from the long-standing consensus approach that protects data privacy depending on how sensitive the data is and inexplicably treats the same data differently depending on what kind of entity is collecting or using it. That approach was unworkable on the internet, where data constantly flow through and among a variety of entities that make up the online ecosystem. It did little to protect consumers because it failed to create comprehensive rules for all personal data no matter where they went in the interconnected online world.

The new push toward state-specific privacy rules, while well-intentioned, will only make that problem worse. There is one global internet, not 50 different state internets or 200-plus national internets. For the U.S. digital economy to work and for Americans to have any shot at understanding how their data are collected and used online, we need one consistent set of federal rules.

The recent privacy vote in Congress thus hit reset on a complex issue in order to give policymakers an opportunity to forge a better bipartisan consensus. And state lawmakers including Sen. Dan Feltes and Rep. Neal Kurk should do the same — not to weaken privacy, but to develop one strong working system that everyone can depend upon online.

The model for such a system is already at hand; the Federal Trade Commission’s flexible privacy framework that has successfully protected internet privacy for the past 20 years. That framework has provided strong and consistent privacy protection to consumers online while giving companies the flexibility they need to innovate and offer new — and low cost — products and services.

The FTC takes a sensitivity-based approach to privacy, providing heightened protection to information deemed “sensitive” because its misuse or disclosure could harm consumers. It ensures that Social Security numbers, information obtained from children, and information related to health, finances, or geo-location all receive stronger privacy protection than data such as online shopping queries or music streaming.

The FTC’s approach is consumer-focused, aligning companies’ behavior with consumers’ expectations. It allows companies to infer consent to use non-sensitive data to offer them new services, because such use is consistent with the relationship between consumer and company. It ensures consumers have the right to opt out in other circumstances where consent cannot be inferred and it recommends opt-in consent be obtained for more aggressive use of information, such as targeting customers based on sensitive data.

This flexible approach allows the FTC to adapt to changes in the marketplace as both technology and consumers’ expectations evolve. And it is consistent with a long series of Obama Administration reports and expert studies that stressed the importance of coordination with the FTC and harmonization with its privacy regime.

That is why the political furor that has erupted around this issue is so disappointing. Privacy has always been a bipartisan issue that unites the left and right around common themes of individual freedom and free and open debate. And getting privacy right for the town square of the public internet is especially vital for our democracy going forward.

I urge the groups working to turn this complex subject into yet another knee-jerk partisan issue to think about the costs of undoing that bipartisan consensus. And I urge state lawmakers to join the national debate rather than balkanize our nation’s privacy protections.

This issue is not about Donald Trump or the next election — it is about you and me, and the future of the internet and our digital economy.

Acting FTC Chairman Maureen Ohlhausen and FCC Chairman Ajit Pai have publicly committed to work together to harmonize the FCC’s approach to privacy with the FTC’s framework. Doing so would provide strong and consistent privacy protection for consumers online while maintaining an environment where companies can innovate and compete in a dynamic internet marketplace.

Nancy Libin is the former chief privacy and civil liberties officer at the U.S. Department of Justice and is now a partner at Jenner & Block in Washington, D.C.